End of Chapter Questions – Business and Employment Law Week One Page 32, question 5: Is the hospital correct? What additional information might you wish to know to answer this question? The classification of an employee and independent contractor is brought up in the case of Wojewski versus Rapid City Regional Hospital Inc. (Bennett-Alexander & Hartman, 2012). The text defines an independent contractor as a person who contracts with a business to perform a specific task, but has complete control over how the process is completed. The business has little to no input over the procedures an independent contractor uses to complete their work. In most cases, the liability lies with the independent contractor, not the business if a claim is made (Bennett-Alexander & Hartman, 2012). An independent contractor is also typically paid in a lump sum by the job and is responsible for paying all related taxes (Bennett-Alexander & Hartman, 2012). Unlike an independent contractor, an employer has a lot more control over an employee. Employees typically receive a great deal more instruction on how to complete tasks related to their jobs, have specific work hours, completes work at the employer’s business location, use equipment provided by the employer, and is paid by the hour, week, or month (Bennett-Alexander & Hartman, 2012). The employer is responsible for withholding and paying Social Security, IRS federal income, and state taxes as well as federal unemployment compensation (Bennett-Alexander & Hartman, 2012). An employer will most likely offer benefits to employees such as paid time off, 401K retirement plans, and medical and dental insurance, all of which are not offered to independent contractors (Bennett-Alexander & Hartman, 2012). The text references several tests that are used to define an employee and independent contractor which include the common-law agency test, IRS 20-factor analysis, and the economic realities test (Bennett-Alexander & Hartman, 2012). The initial conclusion based on the information provided in the text is that the hospital is not correct in claiming that Wojewski is an independent contractor. The information provided points to several factors that indicate Wojewski is an employee of the hospital. Once of the main factors in concluding that he is an employee is the amount of control the hospital had over his work. The hospital required that his work be supervised by another doctor. Wojewski was also required to attend mandatory therapy sessions, submit to competency tests, take only prescribed medication, agree to random drug testing, and take required vacations (Bennett-Alexander & Hartman, 2012). If Wojewski was indeed an independent contractor, the hospital would not be able to impose these types of restrictions on his work. This conclusion is also supported by several factors listed on the IRS 20-factor analysis including instructions, work performed on employer’s premises, furnishing of tools and materials, oral or written reports, and right to discharge (Bennett-Alexander & Hartman, 2012). Wojewski should be able to move forward with his claim of disability discrimination, as long as bipolar disorder is covered under the Americans with Disabilities Act. However, the initial conclusion is proved false after reading the case file. The file provided additional information such as Wojewski leased separate office space and hired, paid and maintained his own staff of administrators, nurses, and physician’s assistants (Wojewski v. Rapid City Regional Hospital Inc, 2006). The additional information also revealed that Dr. Wojewski billed his patients directly and received payments directly from his patients. The hospital had no involvement in billing patients or paying Dr. Wojewski’s for his services completed at their facility (Wojewski v. Rapid City Regional Hospital Inc, 2006). The hospital also did not withhold taxes for Wojewski, issue a W-2 or 1099, or provide any benefits such as health or malpractice insurance to the doctor (Wojewski v. Rapid City Regional Hospital Inc, 2006). All of the details included in this additional information correctly points to Dr. Wojewski as being an independent contractor, not an employee of the hospital. The additional information included in the case file also help to clear up the issue of the control the hospital implemented over Wojewski. It was this control that initially classified him as an employee. The case file clarified that the control placed on Dr. Wojewski was personal control, not control over how he completed his work (Wojewski v. Rapid City Regional Hospital Inc, 2006). The hospital had the right to impose personal controls over Dr. Wojewski in order to safeguard patient safety and avoid liability in the instance of a lawsuit. Wojewski still had full control over the way he worked and performed operations (Wojewski v. Rapid City Regional Hospital Inc, 2006). Dr. Wojewski, as an independent contractor, is not able to make a claim of disability discrimination under the Americans with Disabilities Act because he is not an employee of the hospital. The following additional information would have been helpful in answering the question. Define staff privileges. This would have been helpful to determine if Wojewski received benefits from the hospital. To what extent is bipolar disorder covered under the Americans with Disabilities Act? Describe what is meant by “acute episode”? Was a patient seriously injured? Is the hospital considered an agency of the United States government or fully owned by the United States government? This may have changed the outcome of the case. Page 82, question 6: Does the employee have a claim? In the case of Bonidy versus Vail Valley Center for Aesthetic Dentistry, the plaintiff a terminated employee makes a claim against the defendant, the dental company (Bennett-Alexander & Hartman, 2012). At-will employment and the Health Care Worker Whistleblower Protection Act need to be explored before making an informed decision. At-will employment is when and an employer and an employee do not have a contractual agreement in place. This arrangement allows either party to end the work relationship at any time, and for almost any reason. An employer is not legally allowed to terminate an employee for discriminatory reasons such as race, gender, religion, national origin, age, or disability (Bennett-Alexander & Hartman, 2012). There are a few occasions when at-will employment is superseded or does not apply. For example, if an individual contract or a collective bargaining agreement in place between an employer and employee, the contract or agreement takes priority over at-will employment (Bennett-Alexander & Hartman, 2012). Government workers are exempt from at-will employment, instead other rules and regulations regulate the employee/employer relationship at this level (Bennett-Alexander & Hartman, 2012). One question that is case brings up is whether the new policy the employer implemented is considered part of an employment contract or not. If the policy is considered a contract, the employee may have a case for her claim. If this is an at-will employment relationship, the employer can fire any of their employees for any reason as long as it is within the law (Bennett-Alexander & Hartman, 2012). Another topic to consider in this case is if the new policy implemented is in violation of public policy. Abuses of public policy happen when an employee is fired for refusing to break the law for their employer, exercising a legal right or duty, or reporting violations of acts by the employer (Bennett-Alexander & Hartman, 2012). The conclusion based on information provided by the text is that this is an at-will employment situation and the employer was free to let go this employee without further explanation. There were no infringements of public policy because the new rule stating employees cannot leave the dental office except to use the restroom is not illegal. The other factor to consider in this case is the Health Care Worker Whistleblower Protection Act. This act guards health care workers from harassment, demotion, and dismissal for filing complaints about the condition of their place of work. The act also protects the employee from retaliation from reporting on inappropriate patient care or harsh business practices (Bennett-Alexander & Hartman, 2012). The text points out that Colorado where this case occurred is a state that only offers whistleblower protection to its own state or local government employees (Bennett-Alexander & Hartman, 2012). However, it was the husband of the employee, not the employee themselves who was the whistleblower in this case. At first glance it looked as if the employee may have a claim using retaliatory discharge because her employment was terminated soon after her husband claimed the office was in violation of state laws (Bennett-Alexander & Hartman, 2012). But, it was not the employee who made the complaint, so retaliatory discharge might be hard to prove. The preliminary conclusion based on the information from the text is that the employee does not have a claim because they had an at-will employment relationship with their employer. Although it may seem harsh to dictate that your employees cannot the leave the premises of the business for any reason except to go to the restroom, this is not illegal. The employer was within their legal rights to terminate the employment of their employee without further explanation. The Health Care Whistleblower Protection Act also does not apply in this case because the employer did nothing criminal. The conclusion has changed after reading the full details of the case. The first ruling in this case was awarded to the dental office. The case was appealed and the second ruling went in favor of the plaintiff based on wrongful termination in violation of public policy (Bonidy v. Vail Valley Center for Aesthetic Dentistry, 2010). The employer was in violation of Colorado Wage Order Number 22, when they imposed the new policy. The wage law states, “Employees shall be entitled to an uninterrupted and ‘duty free’ meal period of at least a thirty-minute duration when the scheduled work shift exceeds five hours. Every employer should authorize and permit rest periods, which, insofar as practicable, shall be in the middle of each four (4) hour work period. A compensated ten (10) minute rest period for each four (4) hour or major fractions thereof shall be permitted for all employees.” (Bonidy v. Vail Valley Center for Aesthetic Dentistry, 2010). An at-will employment situation was verified between Debbie Bonidy, the employee who was fired and Dr. Harding, her employer. Ultimately, the wage law is considered public policy, so this allows an at-will employee to bring a claim for unlawful termination (Bonidy v. Vail Valley Center for Aesthetic Dentistry, 2010). It was also revealed that the court concluded that Bonidy’s husband acted on her behalf by sending the email in the first place, and Dr. Harding believed this to be true as well (Bonidy v. Vail Valley Center for Aesthetic Dentistry, 2010). Page 127, question 9: Will the court do so? Explain. At first glance, this case seems to have a lot of merit. Laurie falls under many protected classes such as age, gender, and sexual orientation. She is fired from United Airlines at the age of forty. But, after reading the text, the outcome is clear. Yes, the court will dismiss the case on the basis that she does not live in the United States (Bennett-Alexander & Hartman, 2012). Laurie is a French national, not a United States citizen, so she is not covered by the U.S. employment protection laws. The Civil Rights Act of 1991 did expand on coverage of Title VII to U.S. citizens working for U.S. companies abroad (Bennett-Alexander & Hartman, 2012). Although Laurie does work for a U.S. company, she is not a U.S. citizen and therefore exempt from U.S. laws. As the text points out, if Laurie worked at a United Airlines hub within the U.S. she would be covered and protected by the Civil Rights Act of 1991 and Title VII (Bennett-Alexander & Hartman, 2012). However, she may have a claim using French employment laws. An interesting fact uncovered during research on French employment laws states that unlike the United States, France does not practice at-will employment (James, 2012). French law mandates that employers can only terminate employment for two reasons. First, reasons that involve the employee, such as lack of skill or ability to complete work, bad behavior, or not showing up to work for an extended period of time. The second reason is linked to monetary problems experienced by the employer which will presumably last into the future (James, 2012). For instance, if the company is forced to downsize in order to stay in business. The original conclusion is proved true when the details of the case are revealed. The claim was dismissed due to the fact that RabA©is a French national and not a United States citizen who was employed by United Airlines outside of the United States (James, 2012). The fact that RabA©had an individual employment contract with United may help her case if she makes a claim in France, who again does not have at-will employment. In order to fire RabA©, United will need to prove that she in violation of the first reason a French employer can fire an employee mentioned in the paragraph above. Page 188, question 7: Who is correct? A polygraph is a device that can detect assumed lies based on biological reactions such as rate and deepness of breathing, heart rate, and perspiration (Bennett-Alexander & Hartman, 2012). The accuracy rate has been found to be between 90-50 percent, which points to the validity of using such tests on employees. The Employee Polygraph Protection Act was created to help guard employees from illegal use of polygraphs in employment situations (Bennett-Alexander & Hartman, 2012). The Employee Polygraph Protection Act states that an employer is restricted from doing the following. “1. Directly or indirectly require, request, suggest, or cause any employee to take or submit to any lie detector test. 2. Use, accept, refer to, or inquire about the results of any lie detector test of any job applicant or current employee. 3. Discharge, discipline, discriminate against, or deny employment or promotion to any prospective or current employee who refuses, declines, or fails to take or submit to a lie detector test or who fails such a test.” (Bennett-Alexander & Hartman, 2012). There are some exceptions to these rules that include private employers who provide security services as the bulk of their business and federal, state, and local government employees. The stipulation includes private consultants under contract to the Department of Defense (Bennett-Alexander & Hartman, 2012). However, there are rules that private employers must follow in order to use polygraphs on their employees. The four rules include: “1.The test must be administered in connection with a workplace theft or incident investigation. 2. The employee must have had reasonable access to the missing property or loss incurred. 3. The employer must have reasonable suspicion that this particular employee was involved. 4. The employee must have been given written information regarding the basis for the investigation and for the suspicion that she or he is involved.” (Bennett-Alexander & Hartman, 2012). The first thought given the information provided by the text is that since Transtecs is contracted under the Department of Defense, they are excluded from the coverage of the Employee Polygraph Protection Act. Transtecs does have a right to use a polygraph to help determine which employee opened the mail because it fits most of the four criteria private employers must utilize in order to perform polygraphs. The only questionable item is if the company provided written notification regarding why they were requesting a polygraph from their employees (Bennett-Alexander & Hartman, 2012). But, the view has changed after reading the full details for the case. It turns out that Transtecs is not covered by the exemption status as a government employer because immunity applies only the federal government (Polkey v. Transtecs Corporation, 2005). Transtecs employees were covered under the Under the Employee Polygraph Protection Act because the company is considered a private employer. Another factor in the reversal of opinion is Transtecs not being able to meet all four categories for private employers to be able to use polygraphs on their employees. They did in fact provide written notice to their employees, but the distinction here is that the notice did not include information about the mail incident or the reason for testing each employee (Polkey v. Transtecs Corporation, 2005). The case also reveals a difference between the terms employee and examinee. An examinee is a person who actually agrees to take the test. Only examinees are required by law to receive written notice when a polygraph is being used (Polkey v. Transtecs Corporation, 2005). Transtecs was not required to provide written notice since Polkey declined to take the test. The information also discloses that the company fails to provide adequate details that it meets the requirements of reasonable suspicion. The case notes referenced the following passage. “Access to the property and potential opportunity, standing alone, cannot constitute reasonable suspicion” (Polkey v. Transtecs Corporation, 2005). Therefore, judgment was made in favor of the plaintiff, Polkey. References Polkey v. Transtecs Corporation, 04-14949 (United States Court of Appeals, Eleventh Circuit March 29, 2005). Wojewski v. Rapid City Regional Hospital Inc, 05-2952 (United States Court of Appeals, Eighth Circuit June 9, 2006). Bonidy v. Vail Valley Center for Aesthetic Dentistry, 09CA0602 (Colorado Court of Appeals, Div. I March 18, 2010). RabA© v. United Airlines Inc., 09-3300 (United States Court of Appeals, Seventh Circuit February 28, 2011). Bennett-Alexander, D. D., & Hartman, L. P. (2012). Employment Law for Buisness. New York: McGraw-Hill. James, R. (2012, June 12). https://www.businessweekly.co.uk/export-to/europe/14173-employment-law-guide-france. Retrieved July 20, 2014, from Business Weekly UK: https://www.businessweekly.co.uk/
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